Tuesday 21 July 2020
More changes to the GPDO and to the UCO
As quite a few of you will already be aware, the government has rushed out (just in time before the parliamentary recess) three new statutory instruments, two of which introduce further amendments to the GPDO. The other makes important changes to the Use Classes Order.
None of these changes comes as a surprise, as the government has been promising / threatening these changes for some considerable time. In fact, the only aspect of the timing that calls for comment is the government’s failure to get on with it earlier. These new provisions have had a gestation period that would make an elephant green with envy.
No doubt there will be numerous comments in the press about the new changes, but I would prefer to digest the details before pronouncing on them. I will blog on the new legislation in the next week or two, concentrating primarily on what these changes actually do (as distinct from the grandstanding and hyperbole that is an inevitable accompaniment in today’s government press release).
© MARTIN H GOODALL
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Please could you look one aspect of the new Part 20, Classes AA and AB.
ReplyDeleteIt would appear that if the subject building is part of a terrace [of 2 or more buildings] and under 3 storeys in height then it could be extended by up to 2 stories [if 2 storeys or more] or 1 story if single storey.
Yet if the subject building is detached the right ONLY exists if the building is more than 3 storeys in height. AA.1(a)
Do you think there a specific reason for not allowing single or 2 storey detached buildings the right or does the word ‘building’ in AA.1(a) include the ‘resulting’ building, thus meaning a single storey detached building in commercial/mixed use can be extended by 2 storeys?
At the moment I am writing a note on the changes to the Use Classes Order. I haven’t had time yet to get my head around the new PD rights. So you will have to forgive me if there is a slight delay before I pronounce on this and other points that the latest changes to the GPDO seem to have thrown up.
Delete1. Skimming through the new GPDO amendments No.756 my main concern is that...
ReplyDeleteZA.1(e)"unless the old building has been vacant for a period of at least 6 months immediately prior to the date of the application for prior approval;"
...where a building is currently occupied this is simply going to incentivize the landowner/developer to gain vacant possession, wait 6 months and then apply for PA thus potentially vacating a suitable premises of a use that until that point was viable i.e. evicting a business who then has to go and find new premises and the loss of any otherwise suitable business property. Surely this in not sustainable and goes against the intention of economic recovery in return for a few dwellings.
Having said all that as a developer I will be exploring this option for new development opportunities!
Welcome other thoughts….
BP
2. Following on from my earlier comments (1.) posted against the wrong subject, (again only skimming through the new legislation No.756) it’s not a critical point but I note the rights do not include an express Change of Use they simply apply to Works but it is obviously implied that the new rights include the change to residential use (in fact condition ZA.2(e) refers to remaining in USE as dwellinghouse) however there is no mention of change of use to the any curtilege of the "old building" footprint itsself...(even if the new residential building has a smaller footprint the remaining B1 footprint would not technically change use) so obviously a separate planning application will be needed to change the use of the curtilege needed for the new building to function as a dwelling. LPAs will no doubt use this (and the lengthy Prior Approval assessment) to try and frustrate developments that would otherwise not be policy compliant. The intention of this legislation is clearly targeted at urban locations but it obviously still applies in many rural locations too where the rules and interpretation are going to be more complex. I think the drafting to me seems a bit rushed.
BP
Re the first point, as I explained yesterday, I will be looking at the two latest amendment orders in a future blog (though possibly not for a week or maybe 10 days or so – it depends when I can find the time).
DeleteRe the second point, a planning permission for operational development authorises the use of the building for the purpose stated in the permission, or if no purpose is stated then for the purpose for which was designed. See section 75 of the 1990 Act. (“Designed” in this context means intended; its meaning is not confined to the architectural design.)
The planning permission in this case is granted by Article 3 of the GPDO, read together with the description of the permitted development in question in the Second Schedule to that Order.
Many thanks for your comments Martin, thanks for clarifying the second point, and perhaps the point is also covered by the following section too:
Delete"(4) In relation to Class ZA—
“development” includes any change of use from the use of the old building to the use of the new building within Class C3 of the Schedule to the 1987 Order;"
But again this only covers the building. If they were intending to streamline things (and avoid developers having to make additional full planning applications) then perhaps the PD rights should have included something along the lines:
"...together with a change of use of any land within its curtilage" as with Class O and Class PA etc. including a "curtilage" definition. There could be an obvious reason for this that I have missed …or the legislation is just very rushed!
The developer could perhaps try and rely on Class O and Class PA (which does include such CoU rights) in combination with Class ZA for the operational work however it would be subject to meeting the restrictions and conditions under Class O and Class PA where there could be conflicts between the wording and also two different prior approval applications…
I will let you get back to digesting all the new legislation but I guess it doesn't hurt firing in a few questions for you to consider while you are reading!
Thanks
BP
I still haven't had time to look at this. But in the meantime, all thoughts are welcome.
Delete[My own commentary on this topic, when I publish it, will appear as a new blog post, rather than under this heading.]
The more I read through Class ZA, the more it reads as though it was intended to apply to just urban locations and not also rural locations. My key observations (apologies for repeating myself in some of the below!):
ReplyDeletea) Lack of curtilage provision, which while not necessarily critical, will mean in practice every single site (with the exception of some very tight urban sites where no additional outside land is required for the building to function for the intended use) will require a separate planning application for any change of use or works beyond footprint in order for schemes to actually lawfully function as residential therefore adding uncertainty and delays.
b) Developers will be incentivised to either self-vacate or evict occupiers and wait 6+ months to benefit for PD rights (this could have been alleviated in part if a similar limitations used in PA.1.(f)(ii) had been included i.e. “vacating of the building or the termination of a tenancy for the purpose of carrying out development under this Class…” …although perhaps hard to prove “…for the purpose…”
c) Lack of provision to prevent the complete loss of non-designated heritage assets (that aren’t within Conservation Areas)…the replacement of the word “after” with “between [set date] and” at ZA.1(b) would allow replacement of such buildings to be properly judged through conventional planning application routes.
d) Potential for significant impact in rural locations where not only the loss of heritage assets could occur but low rise buildings could be replaced with a new dwelling or block of flats potentially three times higher (eg. an old building of 3.5m high could be replaced with a new one of 10.5m with two additional storeys) this is significant scale increase
Unless I have missed something (apologies if so!) you could end up with this example scenario:
Say a 100+ year old single storey stone barn in open countryside occupied as B1, the tenant is then evicted and 6+ months later Class ZA could potentially permit its demolition and replacement with a 3 storey dwelling or a number of flats (up to 3,000sqm GEA) on same footprint up to 7m higher.
Even as a developer I wonder if this is a step too far and not actually what was intended by MHCLG, even their press release refers to “…to help revive our high streets and town centres.”
In any event ultimately I don’t see Class ZA solving any issues with housing delivery in fact it will make it less streamline and drain resources and probably only deliver a few more numbers over and above conventional planning routes. In the RIGHT location, replacement of B1 is supported through planning policy and conventional planning applications are in practice no slower than PD so all it will do is pull resources away in fighting battles on sites that aren’t policy complaint but have now unintentionally fallen within the PD loop.
One other general point on delivery under PD rights is that whilst design and external appearance can easily be controlled both through the PA process (eg. ZA.2(2)(d) and (e)) and planning conditions, in practice LPAs lose focus on design in fighting the legality of the development against the GPDO which unfortunately results in the many poorly designed schemes as seen with those that have been built over recent years.
I envisage a lot more Article 4 activity or stronger legal action perhaps…and further amendments.
BP
The more I read about this, both here and elsewhere, the more tempting it is just to pull the bedclothes over my head, turn over and try to forget that yet yet more difficult and complicated changes have been made to the GPDO!
Delete[But, as ministers will earnestly tell you, this represents a simplification of the planning system.]
From a validation point of view, an application under Class ZA would not be lawful if it has not been vacant for at least six months, and was built after 01/01/1990, yet there is no requirement for the applicant to supply an evidence to support the fact that their application complies with either of these as part of the validation requirements. How can the LPA able to know that was built in say, 1989, rather than 1990 (not all LPAs now have a Building Control service) or when it was vacated?
ReplyDeleteThis too is one of the points I shall have to consider when I look at these new provisions in the GPDO.
DeleteAll of the classes A, AA, AB, AC and AD allow for new dwellings atop an existing building, yet all have a clause stating that the dwellinghouses are not flats. Flats are defined in the interpretation as being a separate and self-contained premises constructed for use for the purposes of a dwellinghouse. What exactly is permitted then ?
ReplyDeleteThis type of development is not permitted if the new dwellinghouses are not flats.
DeleteThis double negative may perhaps confuse some readers, but what this means is that the upward extension of the building must be in the form of flats, and only flats.